Justice Kennedy Seen as Key to Obamacare Decision

Bill Clark / CQ Roll Call(WASHINGTON) — Republican attorneys general and senators were all talking about Justice Anthony Kennedy Tuesday afternoon as they left the Supreme Court.

The challengers of President Obama’s health care law appear to believe that if they can persuade Kennedy to vote that the measure is unconstitutional, they’ll have enough justices in their favor.

“All eyes were on Justice Kennedy today,” said Nebraska Attorney General Jon Bruning. “He seemed skeptical of the government’s argument.”

Kennedy told the lawyers in the room that “the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in the very fundamental way.”

Attorneys General Pam Bondi of Florida and Alan Wilson of South Carolina also told ABC News that they were paying close attention to Kennedy’s comments Tuesday morning. Bondi called his questions “fair and thoughtful.”

GOP Senators Mike Lee and John Cornyn, who were inside the room, described Kennedy’s questioning as indicative of his reluctance to embrace the so-called health care mandate. Lee said that based on Kennedy’s questions, facial expressions and body language, he determined that the justice was “leaning toward” voting against Obamacare. A key question, Lee said, was Kennedy’s remark suggesting that government could have too much power to compel people to do something, in this instance buy health care according to the individual mandate.

Texas’s attorney general, Greg Abbott, characterized the morning’s session by saying that five of the justices — a bare majority — focused their questions on the “unprecedented encroachment” of the government purportedly allowed by the health law.

Abbott included Clarence Thomas, who has not asked a question in oral arguments in more than six years, in with those five who seemed to view the mandate as encroachment.